Citation Nr: 0427230
Decision Date: 09/30/04 Archive Date: 10/06/04
DOCKET NO. 98-03 133 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Entitlement to a compensable rating for patent ductus
arteriosus.
REPRESENTATION
Veteran represented by: Barbara J. Cook, Esq.
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The veteran served on active duty from March 1941 to October
1945.
This matter originally came to the Board of Veterans' Appeals
(Board) from a September 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boise, Idaho.
In a January 2000 decision, the Board denied a compensable
rating for patent ductus arteriosus. The veteran appealed
the Board's decision to the US Court of Appeals for Veterans
Claims (Court).
While the case was pending before the Court, in December
2000, the veteran's attorney and a representative of the VA
Office of General Counsel, on behalf of the Secretary, filed
a Joint Motion for Remand. In a December 2000 Order, the
Court granted the motion, vacated the Board's January 2000
decision, and remanded the matter for readjudication
consistent with the December 2000 Joint Motion.
In May 2001, the Board remanded this matter to the RO for
additional development of the evidence. In light of the RO's
failure to comply fully with its remand instructions, in
March 2002, the Board began additional evidentiary
development in this case pursuant to authority granted by 38
C.F.R. § 19.9(a)(2) (2002). In July 2003, after completing
this additional development, the Board remanded the matter to
the RO for due process considerations, in light of the
invalidation of 38 C.F.R. § 19.9(a)(2). See Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003). In February 2004, the Board again
remanded this matter to the RO for additional evidentiary
development. A review of the record shows that the RO has
complied with all remand instructions. Stegall v. West,
11 Vet. App. 268 (1998).
FINDING OF FACT
The most probative evidence of record shows that the veteran
does not currently have disabling symptoms associated with
service-connected patent ductus arteriosus.
CONCLUSION OF LAW
The criteria for a compensable rating for service-connected
patent ductus arteriosus have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.20, 4.31, 4.104,
Diagnostic Code 7000 (1997 and 2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
As a preliminary matter, the Board finds that VA has
satisfied its duties to the veteran under the Veterans Claims
Assistance Act of 2000 (VCAA). In May 2001 and July 2003
letters, the RO notified the veteran and his attorney of the
information and evidence needed to substantiate and complete
his claim, including of what part of that evidence he was to
provide and what part VA would attempt to obtain for him.
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1)
(2003); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
The letters also generally advised the veteran that VA would
assist him in obtaining any additional information that in
support of his claim. Pelegrini v. Principi (Pelegrini II),
18 Vet. App. 112 (2004).
Here, it is noted that the original rating decision on appeal
which denied the veteran's claim was dated in September 1997,
prior to the enactment of the VCAA. Obviously, therefore,
the veteran did not receive a VCAA notice prior to the
initial rating decision denying his claim. Nonetheless, the
Board finds that the lack of such a pre-decision notice is
not prejudicial to the veteran. The VCAA notice was provided
by the RO prior to the transfer and certification of the
veteran's case to the Board, and the content of the notice
fully complied with the requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b). Moreover, the veteran is
represented and has been provided with every opportunity to
submit evidence and argument in support of his claim and to
respond to VA notices. Therefore, the Board finds that to
decide the appeal at this time would not be prejudicial to
the veteran.
Under the VCAA, VA also has a duty to assist claimants in
obtaining evidence needed to substantiate a claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003).
In this case, the veteran's service medical records are on
file and the RO obtained all available post-service VA and
private medical records identified by the veteran.
38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2),
(3) (2003). Moreover, the veteran has been afforded several
VA medical examinations in connection with this claim. Taken
together, the examination reports and an April 2004 VA
medical opinion provide the necessary information.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
development action is necessary. 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2003).
I. Factual Background
At the veteran's March 1941 military induction medical
examination, a reduplicated first sound at the mitral area
was heard. It was noted to be of no significance.
In-service medical records include a September 1945
consultation request form noting that the veteran's
cardiovascular history was negative. Physical evaluation
revealed no enlargement, no friction rubs, and no apical or
aortic murmurs. There was a short loud systolic blow over
the pulmonic area with a suggestive thrill after exercise and
a clicking of the first and second sounds accentuated at the
pulmonic. The veteran's blood pressure was 130/84. There
was no undue cyanosis or dyspnea after exercise testing. The
consultation report indicates that a patent ductus arteriosus
or pulmonary valve difficulty (stenosis) should be ruled out.
The final diagnosis was mild, patent ductus arteriosus,
stated to have existed prior to service and have been
aggravated thereby. An electrocardiogram showed a regular
sinus rhythm, and X-rays showed a prominence at the pulmonary
conus.
At the veteran's September 1945 military discharge medical
examination, his blood pressure was 124/68. He was
discharged by reason of disability, specifically, congenital
anomaly of heart, patent ductus arteriosus. It was noted
that the veteran was permanently incapacitated for military
service because of the progressive nature of the disease
which precluded physical exertion required in military
activity.
Following his separation from service, the veteran filed an
application for VA compensation benefits, seeking service
connection for "heart trouble." In an October 1945 rating
decision, the RO granted service connection for patent ductus
arteriosus, with dyspnea on exertion and weakness, rated as
Class III myocarditis under Diagnostic Code 1036. The RO
assigned an initial 60 percent disability rating, effective
October 3, 1945.
At a VA cardiovascular examination in February 1947, the
clinical diagnoses were congenital anomaly of the heart,
possibly patent ductus arteriosus with no manifestations,
capacity for work Class I; and cardiac hypertrophy not found
this examination. An electrocardiogram in February 1947 was
normal. A chest x-ray taken at that time was interpreted as
showing cardiac findings in keeping with a patent ductus
arteriosus, with a minor hypertrophy of the left ventricle, a
slight bulging in the region of the pulmonary conus, and a
moderate hypoplasia of the thoracic aorta.
In a March 1947 rating decision, the RO assigned a 30 percent
rating for the veteran's heart disability, as analogous to
rheumatic heart disease, effective May 18, 1947.
A report of private evaluation in March 1950 includes note
that the veteran had had no symptoms since discharge except
for mild fatigability and occasional transient dizzy spells.
Examination revealed no heart enlargement. A rough,
reduplicated first pulmonic sound was heard at the left
sternal border in the first and second interspaces,
aggravated with exercise and disappearing on deep
inspiration. There was no sign of congestive failure and an
electrocardiogram was normal. The conclusion was no heart
disease.
At a VA medical examination in March 1950, the examiner
indicated that patent ductus arteriosus or other heart
disease was not clinically evident. A chest X-ray
demonstrated no cardiac enlargement. There was a slight
prominence of the pulmonary artery, but insufficient roentgen
evidence to suggest a congenital cardiac anomaly.
In a March 1950 rating decision, the RO decreased the rating
for the veteran's service-connected patent ductus arteriosus
to zero percent, to be effective June 6, 1950.
In July 1978 and March 1979, the veteran requested an
increased rating for his service-connected patent ductus
arteriosus. A summary medical listing reflects that the
veteran had high blood pressure in November 1972, and that
chest X-rays were negative in May 1978. In a May 1979 rating
decision, the RO confirmed and continued the zero percent
rating for the veteran's service-connected patent ductus
arteriosus.
In August 1996, the RO received the veteran's most recent
claim for an increased rating for his patent ductus
arteriosus disability. In support of his claim, the veteran
submitted extensive medical records dated from 1988 to 1995.
In pertinent part, these records reflect treatment for
glucose and blood pressure levels, as well as status post
cerebrovascular accidents.
Private medical records in the claims file show the veteran's
history of a cerebrovascular accident in or around 1989
resulting in a loss of the lateral visual field in the left
eye, without other sequela. In April 1992, the veteran had
an acute cerebrovascular accident with dysarthria, resulting
in slurred speech. The results of chest films taken in
October 1993 revealed no heart enlargement.
Private medical records dated in January 1994 reflect
hospital admission for unstable angina pectoris; other
diagnoses included coronary artery disease, and status post
cerebrovascular accidents. The veteran underwent cardiac
catheterization and aortocoronary bypass surgery. Final
diagnoses were arteriosclerotic heart disease, status post
angina symptomatology; status post single vessel
aortocoronary bypass graft surgery; and adult-onset diabetes
mellitus, fairly well controlled; prior history of
cerebrovascular accident; respiratory insufficiency
postoperative, improving off oxygen; and postoperative
supraventricular ventricular arrhythmias, stable. Hospital
reports include notations that the veteran had been
discharged from the military on disability and that in the
past it was thought he had a ventricular septal defect. He
denied any significant dyspnea. An echocardiogram was noted
to have shown right heart enlargement with mild concentric
left ventricular hypertrophy, with electrocardiograms showing
significant anteroseptal wall ischemia. Clinical impressions
did not include patent ductus arteriosus.
Private medical records further reflect that the veteran was
admitted for hospitalization in May 1994; the final diagnoses
were left cerebral hemispheric infarction; prior subcortical
left cerebral hemispheric infarction; diabetes mellitus; and,
coronary artery disease.
A report of private evaluation dated in November 1994 notes
that the veteran had known coronary disease for which he had
undergone bypass surgery. The physician noted that the
veteran had "no chest discomfort to speak of since the
surgery," but that if he exerted himself significantly, he
would get chest pain. The veteran denied shortness of
breath, lightheadedness or syncope. The veteran's left
atrium was stated to be mildly enlarged. Examination
revealed that the veteran was stable from a cardiac
standpoint; further testing was recommended to determine if
the veteran might have developed atrial fibrillation with
some other type of supraventricular tachyarrythmia. The
physician's impression was that the veteran was essentially
asymptomatic from coronary disease; that he had a history of
controlled hypertension; and that he was being followed
status post cerebrovascular accidents.
A March 1995 note indicates that the veteran was stable
status post bypass surgery in January 1994 and that his
hypertension was controlled. A private doctor's letter dated
in July 1995 includes note that an MRI in May 1995 showed a
new infarct in the left cerebellar hemisphere. An August
1995 record indicates that the veteran was status post
single-vessel bypass surgery, with present chronic stable
angina and chest discomfort with exertion only, as well as
balance complaints status post cerebrovascular accidents.
In November 1997, the veteran underwent VA medical
examination at which the diagnosis was patent ductus
arteriosus. The VA examiner explained that
patent ductus arteriosus is a type of heart defect
that is present at birth. The ductus arteriosus is
a channel between the pulmonary artery and the
aorta (two large vessels emerging from the heart
though which in the fetus, the blood pumped by the
right side of the heart is able to bypass the
lungs. The duct usually closes at or shortly after
birth so blood will go into the lungs. However, in
some babies born prematurely, or with breathing
difficulties this closure fails to happen. Some of
the blood pumped by the left side of the heart and
intended for the body is misdirected via the duct
to the lungs. As a result, the heart must work
harder to pump efficient blood to the body.
The VA examiner set out the signs and symptoms associated
with patent ductus arteriosus. Specifically, he indicated
that the defect was not usually severe enough to cause
symptoms. Occasionally, however, when a large amount of
blood is misdirected, strain is placed on the heart. As a
result, the baby fails to gain weight, becomes short of
breath on exertion, and has frequent chest infections. He
explained that, eventually, reduced pumping efficiency may
develop and heart failure is a common complication of patent
ductus arteriosus.
At the time of VA medical examination in November 1997, the
veteran gave a history of heart surgery in 1994, at which
time he underwent a single vessel coronary artery bypass
graft. The veteran and his spouse indicated that no other
cardiac abnormalities were found at that time. The veteran
denied chest pain except with exercise or when moving around
a lot, and stated that any pain was usually relieved with
rest. The echocardiographic impression was septal myocardial
infarction with diastolic dysfunction and ejection fraction
estimated at 40 to 45 percent. X-ray studies revealed a
stable chest without acute air space disease. Examination
revealed a regular heart rate and rhythm without evidence of
murmurs, gallops or rubs. The examiner commented that if the
veteran indeed had had patent ductus arteriosus, it would
have been repaired during the 1994 heart surgery. He noted
that the veteran's heart chamber sizes appeared normal, and
any changes were consistent with the veteran's myocardial
infarction.
In July 2001, the veteran underwent VA medical examination at
which he reported occasional shortness of breath, severely
reduced mobility, unstable gait, and a heart murmur. It was
noted that the veteran had a history of coronary artery
disease with coronary artery bypass grafting in 1994, as well
as three vessel coronary disease with unstable angina
pectoris, which was not suitable for treatment with further
grafting. It was also noted that the veteran had a history
of previous cerebrovascular accidents. Objective examination
revealed that the heart sounds were regular. There was a
fourth heart sound audible, and there was a soft systolic
murmur. The cardiologist indicated that this probably
represented aortic valve stenosis. He indicated that he
could find no clinical evidence of aortic sclerosis. After
examining the veteran and reviewing his medical history, the
cardiologist indicated that the veteran had severe coronary
artery disease, longstanding diabetes, previous
cerebrovascular accidents, and significant peripheral
vascular disease, but no evidence of patent ductus
arteriosis. The cardiologist indicated that it was unlikely
that patent ductus arteriosis would be present in a patient
of the veteran's age.
In pertinent part, additional VA and private clinical
records, dated from August 1996 to July 2002 show that the
veteran was treated for numerous disabilities including
coronary artery disease, diabetes mellitus, hypertension, and
episodes of syncope. None of this evidence contains any
indication of a link between the veteran's current
symptomatology and his active service or his service-
connected patent ductus arteriosis. In a December 2001
private medical evaluation report, the physician noted that
there had been some discussion about the significance of a
murmur noted during the veteran's active duty. He noted that
the veteran did not have cardiac problems, however, until his
coronary artery bypass surgery in 1994. He indicated that he
was unable to establish any relationship between the
observations in 1945 and the veteran's current obvious
coronary and vascular disease which have caused the
predominance of his problems since 1994.
The veteran again underwent VA medical examination in August
2002. According to the examination report, the examiner
reviewed the veteran's claims folder in detail, including the
service medical records showing a diagnosis of patent ductus
arteriosis. With respect to the post-service medical
records, the examiner noted that the veteran had been active
until 1994, when he had bypass surgery and a series of
strokes. Also reviewed by the examiner was an echocardiogram
study showing a moderate left ventricular dysfunction with
estimated ejection fraction 35%, but no evidence of patent
ductus arteriosis. After examining the veteran and reviewing
the claims folder in detail, the examiner indicated that
there was no evidence for a patent ductus arteriosis, nor was
there any evidence that the veteran's symptoms were related
to patent ductus arteriosis. He also indicated that there
was no evidence that the veteran had any current pathology or
symptomatology attributable to patent ductus arteriosis.
Finally, he indicated that there was no evidence that the
veteran's current coronary disease, hypertension,
atherosclerosis or cardiovascular disorder was related to or
developed from the previously diagnosed patent ductus
arteriosis.
In an April 2004 VA medical opinion, a VA physician indicated
that he had reviewed and analyzed the veteran's medical
records and had concluded that there was no evidence that the
veteran's current cardiovascular disorder is related to
symptoms shown during active service.
II. Laws and Regulations
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities. 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2003). Any
reasonable doubt regarding the degree of disability is
resolved in favor of the veteran. 38 C.F.R. § 4.3 (2003).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings, nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20 (2003).
The evaluation of the same disability under various diagnoses
is to be avoided. Disability from injuries to the muscles,
nerves, and joints of an extremity may overlap to a great
extent, so that special rules are included in the appropriate
bodily system for their evaluation. Both the use of
manifestations not resulting from service-connected disease
or injury in establishing the service-connected evaluation,
and the evaluation of the same manifestation under different
diagnoses are to be avoided. 38 C.F.R. § 4.14 (2003).
The Court held in Francisco v. Brown, 7 Vet. App. 55, 58
(1994), that compensation for service-connected injury is
limited to those claims which show present disability, and
where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance.
In exceptional cases where the schedular evaluations are
found to be inadequate, the Under Secretary for Benefits or
the Director, Compensation and Pension Service, upon field
station submission, is authorized to approve on the basis of
the criteria set forth in this paragraph an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability. The governing norm in these exceptional cases
is: a finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent period of
hospitalizations as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)(1)
(2003).
In claims for VA benefits, VA shall consider all information
and lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C.A.
§ 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
Effective January 12, 1998, the rating criteria for
evaluating cardiovascular disorders changed. See 65 Fed.
Reg. 207, 224 (December 11, 1997). The Board will apply the
version of the criteria which is most favorable to the
veteran.
Under criteria in effect prior to January 12, 1998, a 10
percent rating is warranted when, following active rheumatic
heart disease, there is an identifiable valvular lesion,
slight, if any dyspnea, and the heart is not enlarged. A 30
percent evaluation is warranted from the termination of an
established service episode of rheumatic of rheumatic fever,
or its subsequent recurrence, with cardiac manifestations,
during the episode or recurrence, for 3 years, or diastolic
murmur with characteristic EKG manifestations or definitely
enlarged heart. A 60 percent rating may be assigned when the
heart is definitely enlarged, with severe dyspnea on
exertion, elevation of the systolic blood pressure, or such
arrhythmias as paroxysmal auricular fibrillation or flutter
or paroxysmal tachycardia, with more than light manual labor
precluded. A 100 percent evaluation for inactive rheumatic
heart disease requires clinical and roentgenogram
confirmation of definite enlargement of the heart, dyspnea on
slight exertion, rales, pretibial pitting at the end of the
day, or other definite signs of beginning congestive failure;
and preclusion of more than sedentary labor. 38 C.F.R. §
4.104, Diagnostic Code 7000 (1997).
The new criteria, effective from January 12, 1998,
incorporate objective measurements of the level of physical
activity, expressed numerically in metabolic equivalents
(METs) at which cardiac symptoms develop. METs are measured
by means of a treadmill test. It is recognized, however,
that a treadmill test may not be feasible in some instances
owing to a medical contraindication, such as unstable angina
with pain at rest, advanced atrioventricular block, or
uncontrolled hypertension. If a treadmill test is thought to
be inadvisable due to factors including the foregoing, the
examiner's estimation of the level of activity, expressed in
METs and supported by examples of specific activities, such
as slow stair climbing or shoveling snow that results in
dyspnea, fatigue, angina, dizziness, or syncope, is
acceptable. See 38 C.F.R. § 4.104, Note 2 (2003).
Under the revised criteria for Diagnostic Code 7000, a 10
percent rating is warranted where a workload of greater than
seven METs but not greater than 10 METs results in dyspnea,
fatigue, angina, dizziness, or syncope, or; continuous
medication required. A 30 percent rating is warranted where
there is a workload of greater than five METs but not greater
than seven METs results in dyspnea, fatigue, angina,
dizziness, or syncope, or; evidence of cardiac hypertrophy or
dilatation on electro-cardiogram, echocardiogram, or X-ray.
A 60 percent rating is warranted where there has been more
than one episode of congestive heart failure in the past
year; where a workload of greater than three METs but not
greater than five METs results in dyspnea, fatigue, angina,
dizziness or syncope; or where there is left ventricular
dysfunction with an ejection fraction of 30 to 50 percent. A
100 percent rating is warranted for chronic congestive heart
failure; where a workload of three METs or less results in
dyspnea, fatigue, angina, dizziness, or syncope; or where
there is left ventricular dysfunction with an ejection
fraction of less than 30 percent. 38 C.F.R. § 4.104 (2003).
Where the schedule does not provide a zero percent evaluation
for a diagnostic code, a zero percent evaluation shall be
assigned when the requirements for a compensable evaluation
are not met. 38 C.F.R. § 4.31.
III. Analysis
Applying the criteria set forth above to the facts in this
case, the Board finds that the criteria for a compensable
rating for patent ductus arteriosus have not been met, either
under the old or amended rating criteria. 38 C.F.R. § 4.104,
Diagnostic Code 7000 (1997 and 2003).
As set forth above, the record in this case shows that the
veteran's patent ductus arteriosus has been essentially
asymptomatic for many decades. Although it is clear that he
has experienced severe cardiovascular disease since
approximately 1994, the medical evidence of record
unanimously indicates that such current cardiovascular
disorder is unrelated to the veteran's active service or his
service-connected patent ductus arteriosus.
For example, in November 1997, a VA examination was conducted
specifically to assess any existing patent ductus arteriosus.
The VA examiner noted the veteran's history, to include the
presence of other disabilities such as hypertension, diabetes
mellitus and coronary artery disease, with a history of
cerebrovascular accidents. The VA examiner concluded,
however, that the veteran did not currently have patent
ductus arteriosus.
In addition, in a July 2001 VA medical examination report,
after examining the veteran and reviewing his medical
history, a Board certified cardiologist indicated that
although the veteran currently had severe coronary artery
disease, longstanding diabetes, previous cerebrovascular
accidents, and significant peripheral vascular disease, there
was no evidence that he currently had patent ductus
arteriosis.
In a December 2001 private medical evaluation report, a
physician noted that there had been some discussion about the
significance of a murmur noted during the veteran's active
duty. He noted that the veteran did not have further cardiac
problems, however, until his coronary artery bypass surgery
in 1994. As a result, he indicated that he was unable to
establish any relationship between the observations in 1945
and the veteran's current, obvious coronary and vascular
disease which had caused the predominance of his problems
since 1994.
According to an August 2002 examination report, after
examining the veteran and reviewing the claims folder in
detail, the examiner indicated that there was no evidence for
a patent ductus arteriosis, nor was there any evidence that
the veteran's current symptoms were related to patent ductus
arteriosis. He also indicated that there was no evidence
that the veteran had any current pathology or symptomatology
attributable to patent ductus arteriosis. Finally, he
indicated that there was no evidence that the veteran's
current coronary disease, hypertension, atherosclerosis or
cardiovascular disorder was related to, or developed from,
the previously diagnosed patent ductus arteriosis.
Finally, in an April 2004 VA medical opinion, a VA physician
indicated that he had reviewed and analyzed the veteran's
medical records and had concluded that there was no evidence
that the veteran's current cardiovascular disorder is related
to symptoms shown during active service.
The Board assigns great probative weight to the medical
opinions discussed above. These medical opinions were based
on a review of the veteran's medical records and/or a
clinical interview and evaluation. Moreover, and most
convincingly, the Board notes that there is no medical
evidence in this case which contradicts the medical opinions
discussed above. Rather, the medical evidence of record is
unanimous in concluding that the veteran's current patent
ductus arteriosus, if existing, is asymptomatic.
The Board has carefully and sympathetically reviewed the
record in this case, but is unable to find any evidence on
which to assign a compensable rating for patent ductus
arteriosus. The Board does not dispute that the veteran
currently experiences symptoms such as dyspnea, shortness of
breath and fatigability, which are included in the criteria
of 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997 and 2003).
Again, however, the probative evidence of record shows that
such symptomatology is due to nonservice-connected disability
and that the veteran does not currently exhibit any pathology
or symptomatology which is attributable to service-connected
patent ductus arteriosus. As set forth above, when rating a
service-connected disability, the use of manifestations not
resulting from the service-connected disease or injury is to
be avoided. 38 C.F.R. § 4.14 (2003).
The Board has also considered the provisions of 38 C.F.R. §
3.321(b)(1), but notes that the veteran has not asserted, nor
does the evidence suggest, that the regular schedular
criteria are inadequate to evaluate his service-connected
disability. Absent any objective evidence that his patent
ductus arteriosus is productive of marked interference with
employment, necessitates frequent hospitalization, or that
the manifestations associated with this disability are
unusual or exceptional, referral for consideration of an
extra-schedular rating is not warranted. Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
In summary, the probative evidence of record demonstrates
that the veteran has no current pathology or symptomatology
attributable to service-connected patent ductus arteriosis.
Having identified no symptomatology in the objective medical
evidence of record warranting a compensable rating, the Board
finds that the preponderance of the evidence is against the
veteran's claim. Thus, the benefit of the doubt rule is
inapplicable. 38 U.S.C.A. § 5107(b)(West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
A compensable evaluation for service-connected patent ductus
arteriosus is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2